Garcia v. Stemilt AG Servs.

• Decision Date: 20 August 2021
• Docket Number: 2:20-cv-00254-SMJ
• Parties: GILBERTO GOMEZ GARCIA, as an individual and on behalf of all other similarly situated persons, and JONATHAN GOMEZ RIVERA, as an individual and on behalf of all other similarly situated persons, Plaintiffs, v. STEMILT AG SERVICES LLC, Defendant.
• Court: U.S. District Court — District of Washington

GILBERTO GOMEZ GARCIA, as an individual and on behalf of all other similarly situated persons, and JONATHAN GOMEZ RIVERA, as an individual and on behalf of all other similarly situated persons, Plaintiffs, v. STEMILT AG SERVICES LLC, Defendant.

No. 2:20-cv-00254-SMJ

United States District Court, E.D. Washington

August 20, 2021

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR CLASS CERTIFICATION

SALVADOR MENDOZA, JR. United States District Judge.

Before the Court is Plaintiffs' Motion for Class Certification ECF No. 63. The Court heard oral argument in this matter and has considered the parties' briefing and exhibits. As defense counsel put it at the hearing, “[t]his case is an untidy sprawling mess” of facts, procedural issues and substantive law. Tr. (Aug. 4, 2021). This is not “a simple case with a straightforward resolution.” Id. Nor, as the Court will explain, does this case-which is plagued by individual issues-generally lend itself to class-wide resolution. The Court thus declines to certify Plaintiffs' three proposed classes. However, as explained below, it does certify a subclass for a portion of Plaintiffs' Farm Labor Contractor Act (FLCA) claims.

BACKGROUND

A. Plaintiffs' Claims

This case concerns Plaintiffs' allegations that Defendant imposed a productivity requirement that was not disclosed in the workers' contracts, discriminated against foreign H-2A workers, threatened to blackball them or force them to leave the country, and did not pay them wages owed. Altogether, Plaintiffs' Third Amended Complaint brings three claims under the Trafficking Victims' Protection Act (TVPA) (18 U.S.C. §§ 1589(a)(3), (4) and 1592(a)), a claim under the Washington Law Against Discrimination (WLAD) (Wash. Rev. Code § 49.60.180(3)), a breach of contract claim, FLCA claims (a single count alleging violations of Wash. Rev. Code §§ 19.30.120(2), 19.30.110(5), 19.30.110(7)(h), 19.30.110(7), and 19.30.110(2)), a willful refusal to pay wages claim (Wash. Rev. Code § 49.52.050(2)), and an alienage discrimination claim (42 U.S.C. § 1981). ECF No. 171.

Plaintiffs' claims arise from one or both of two H-2A Clearance Orders- from January 2017 and August 2017-and the labor performed thereunder. ECF No. 171. Neither contract included minimum production standards, although they did require workers to “work at a sustained pace and make bona-fide efforts to work efficiently and consistently that are reasonable under the climactic and other working conditions.” See ECF No. 97-1 at 17; ECF No. 97-2 at 15. The second contract also provided:

If the Worker is consistently unable to perform their duties in a timely and proficient manner consistent with applicable industry standards, considering all factors, they will be provided training in accordance with Employer's progressive discipline standards, including verbal instruction, written warnings, time off, or other coaching or instruction to teach the worker to work more efficiently. If performance does not improve after coaching and several warnings, the Worker may be terminated. These standards are not linked to any specific productivity measure and apply equally to if the Worker is working on an hourly and/or piece rate basis.

See ECF No. 97-2 at 20. Defendant used a uniform disclosure form, signed by Andy Gale, Defendant's General Manager. See ECF Nos. 69-15, 69-16. These forms did not include a daily production standard or provide for discipline stemming from failing to comply with any such standard. See ECF Nos. 69-15, 69-16. The 1, 100 workers employed under the contracts worked at thirty-six orchards in three primary areas: Tri-Cities, Mattawa, and Wenatchee/Quincy. See ECF No. 68-2.

During that time, Gale was Defendant's General Manager, and Robin Graham was his Assistant Operations Manager. Five area managers reported to Gale and Graham. See ECF No. 68-6. One of the area managers, Juan Cuevas, has described that:

Orchard management at Stemilt is fairly consistent at its different orchards. Each orchard is managed by a single ranch manager, followed by one or more assistant managers (also referred to as a foreman). Under the assistant managers are supervisors. Supervisors oversee a handful of crews. Each crew is managed by a crew leader. Crews are comprised of 10-20 workers.

ECF No. 69-17 at 3.

Plaintiffs allege that after an upper management meeting in September 2017, Gale “blurted out that from now on all H-2A workers ‘had to pick three bins a day or they will go back to Mexico.” ECF No. 68-3 at 4; ECF No. 68-4 at 4. Graham added, “We don't care what the variety is, it's three bins a day.” ECF No. 68-3 at 4; ECF No. 68-4 at 4. A few days later, Graham sent an email to all area managers, with the subject line “Please Review: New Policy, ” stating in pertinent part:

Beginning with our next pay period, all employees who have completed the training period should be producing a minimum average of 3 bins in an 8hr shift. If employees do not fulfill this requirement, they should be receiving a progressive disciplinary action due to not following the supervisor's instructions, rather than low production.

Can you please share this message with your supervisors and crew bosses. Tomorrow we should begin to deliver this expectation to our pickers verbally in field meetings. It is important we structure these discussions with a couple of points:

• Explain the background of the need for the change, the “why”, before we announce this policy.

• Let's keep the tone of these meetings at a “coaching” level. We don't want these to be confrontational.

• We need to recognize there are many who are doing a great job, we really appreciate that good job, but some are dragging the whole group down.

• When we talk to the groups, it is important that we talk around the pace of harvest rather than production.

If conditions arise that are out of the pickers control which keep them from reaching this minimum we should not discipline. Area managers should review these write-ups.

Don't hesitate to contact HR or me or Andy if you have any questions.

ECF No. 68-8 at 2 (emphasis in original).^[1] Cuevas asked Graham to confirm whether the policy applied to all apple varieties, and Graham responded: “Yes. All varieties. Just giving you guys another option for discipline.” ECF No. 68-9 at 2.

After the policy was put in place, Defendant's HR division allegedly created a uniform productivity warning form that was disseminated to all ranch managers. ECF No. 68-3 at 5; ECF No. 68-4 at 5. The form purportedly stated that if a worker received three warnings, they would be fired, sent back to Mexico, and become ineligible to work for Defendant in the future. ECF No. 68-3 at 5; ECF No. 68-4 at 5.^[2] Plaintiffs claim that warnings “began flooding in” from the Tri-Cities and Mattawa area orchards, and that the Wenatchee/Quincy orchards punished workers who did not meet the productivity standards by requiring them to return to their housing for the day. ECF No. 63 at 11-12 (citing ECF No. 68-3 at 5; ECF No. 68 4 at 5). Plaintiffs claim these warnings were disproportionately issued to H-2A workers. ECF Nos. 118, 118-1.^[3] Plaintiffs also allege that ranch and orchard managers “routinely threatened to fire and blacklist H-2A workers from future employment in the United States if they failed to meet Stemilt's unlawful daily production standards.” ECF No. 63 at 12; see also ECF No. 68-14 at 3 (internal investigation by Defendant noting allegations that supervisors threatened to send workers back to Mexico and that a supervisor “walks around waving the corrective action book in a threating manner”); see, e.g., ECF No. 68-11 (describing implementation of the production standard at one of Defendant's orchards). But Defendant contends that Area Managers and Ranch Managers exercise discretion and that each orchard's response to Graham's email differed. ECF No. 99 at 11; see also ECF No. 96 at 14-15; ECF No. 102-23 at 5-6; ECF No. 102-24 at 6-8; ECF No. 102-27 at 5-9. Defendant also contends that although many workers failed to meet the three-bin-a-day standard, relatively few were written up or fired. ECF No. 99 at 11; see also ECF No. 104.

In addition to their claims regarding the alleged production quota policy, Plaintiffs also allege that Defendant withheld updated work permits from class members to prevent them from leaving Defendant's property. Plaintiffs claim that Defendant received renewed work permits-for the August contract-at the end of August, but Defendant instructed HR staff not to give them to H-2A workers to prevent them from quitting. ECF No. 63 at 17; see also ECF No. 68-3 at 7; ECF No. 68-4 at 7; ECF No. 68-18 at 4-5; ECF No. 69-3 at 7; ECF No. 69-11 at 3-4.

Plaintiffs also allege that supervisors “made disparaging comments regarding the H-2A workers' nationality, ” including calling them “stupid Mexicans, ” saying that Mexicans were not good for anything, stating that because individuals were from Arandas, Jalisco, Mexico, they were not good workers, and calling the H-2A workers lazy. ECF No. 63 at 18.

Further, Plaintiffs allege that Defendant regularly transported H-2A workers to other orchards via bus. When the bus arrived, the workers had to wait before beginning work, and at the end of the day, they had to wait before being transported back. ECF No. 63 at 19; see also ECF No. 66 at 8; ECF No. 67 at 7. These waits could be up to an hour or more. ECF No. 63 at 19; see also ECF No. 66 at 8; ECF No. 67 at 7. Workers were not paid for these waiting periods, as Defendant admits. ECF No. 63 at 19; see also ECF No. 66 at 8; ECF No. 67 at 7; ECF No. 99 at 28.

B. Fraud by Defendant's Employees

Complicating matters in this case is a supposed scheme by two of Defendant's former employees. HR employee Elizabeth...